IN THE COURT OF APPEALS OF IOWA
No. 20-0389
Filed June 30, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DENNIS CARROLL GLENN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Guthrie County, Thomas P. Murphy,
Judge.
Dennis Glenn challenges the sufficiency of the evidence to support his
convictions for possession of marijuana and possession of methamphetamine. He
also requests a new trial on the basis of newly discovered evidence. AFFIRMED.
Nathan A. Olson of Branstad & Olson Law Office, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by May, P.J., and Greer and Schumacher, JJ.
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GREER, Judge.
Dennis Glenn challenges the sufficiency of the evidence on his convictions
for possession of marijuana and possession of methamphetamine. He claims the
State did not prove he knowingly possessed marijuana or methamphetamine and
did not prove he possessed methamphetamine, arguing possession of
methamphetamine residue is not enough to support his conviction. In addition,
Glenn claims the district court erred in denying his request for a new trial, pointing
to newly discovered evidence.
I. Facts and Earlier Proceedings.
This case started as a routine traffic stop in August 2019. Deputy Sheriff
Jeremy Bennett initiated the stop and approached the vehicle. He observed a
female in the driver’s seat, Desiray Elliott, and Glenn in the front passenger seat.
Deputy Bennett spoke with Elliott and believed she was under the influence; he
also found the vehicle had incorrect license plates. In the course of investigating
and speaking with the Elliott, he noticed a backpack between Glenn’s feet on the
front passenger side of the vehicle. Deputy Bennett requested backup.
Soon after, Deputy Kent Gries responded to assist. He spoke with Elliott as
she sat in Deputy Bennett’s patrol vehicle; he thought she appeared impaired.
Deputy Gries told Glenn he was going to search the car, to which Glenn
responded: “Just the car right?” Glenn clarified he had a “personal backpack in
there.” When Deputy Gries asked what was in the backpack, Glenn replied “my
own personal stuff” and told Deputy Gries he did not have permission to search
the backpack. Once Deputy Gries removed the backpack from the floor of the front
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passenger seat, he found Glenn’s cell phone and a cigarette box containing cash.
Glenn later confirmed both were his. After placing the backpack on the hood of
the car, Deputy Gries searched the car’s passenger compartment and found
nothing illegal. He searched the backpack next; he found a plastic container and
plastic bag, both containing what appeared to be marijuana,1 and two glass pipes
in the front zipper pocket. The pipes appeared to contain methamphetamine
residue.2 Elliott then told Deputy Gries the pipes and marijuana belonged to her
and Glenn; they had bought the marijuana together and planned to sell it for ten
dollars.
Glenn and Elliott were arrested and transported to the law enforcement
center. During the booking process, Glenn asked Deputy Gries to retrieve his
“other pair of glasses out of my bag.” He also mentioned a letter addressed to the
social security office in the backpack and asked Deputy Gries if he would mail it
for him, stating “it’s already stamped and everything.” Glenn was allowed to
access the backpack and he produced the letter. He also searched for his cell
phone. Glenn then asked if his cousin could come get the bag after the inventory
process: “Once you’re through all that shit, can I have, I want my cousin to come
get it.” Glenn then admitted to officers at the center, “I had residue in two glass
1 Testing performed by Trooper Marty McCreedy of the Iowa State Patrol confirmed
the substances in the container and bag were marijuana. He also tested residue
from a marijuana pipe found in the backpack; and it tested positive for trace
amounts of marijuana.
2 One of the pipes was sent to the Iowa Division of Criminal Investigation, and
residue tested positive for methamphetamine.
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dicks.[3] I haven’t had my meds so I got some pot to help ease my pain.” Deputy
Gries searched the backpack again and confirmed it contained two
methamphetamine pipes with residue, a newly found marijuana pipe with residue,
a prescription bottle with Glenn’s name, and mail addressed to Glenn.
Glenn was charged with possession of methamphetamine and possession
of marijuana (third or subsequent offense on both charges). See Iowa Code
§ 124.401(5) (2019). He was also charged with violating Iowa Code section
124.402(1)(e).4 The jury trial began in December 2019; on December 4, Glenn
was found guilty on both possession charges and acquitted on the third charge.
On December 15, after the trial was completed, but before Glenn was sentenced,
Elliott sent a notarized letter to the county attorney claiming the drugs and the three
pipes belonged to her. In January 2020, Glenn timely moved for a new trial on the
basis the letter was newly discovered evidence. The district court denied Glenn’s
motion during a hearing in February. He was sentenced to concurrent terms not
to exceed fifteen years imprisonment.5 Glenn now appeals.
3 Deputy Gries testified at trial that “glass dick” is a term used by methamphetamine
users to describe glass methamphetamine pipes.
4 Iowa Code section 124.402(1)(e) provides that it is unlawful for any person to
[k]nowingly to keep or permit the keeping or to maintain any
premises, store, shop, warehouse, dwelling, temporary, or
permanent building, vehicle, boat, aircraft, or other temporary or
permanent structure or place, which is resorted to by persons using
controlled substances in violation of this chapter for the purpose of
using these substances, or which is used for keeping, possessing or
selling them in violation of this chapter.
5 Glenn’s sentence was enhanced because of his status as an habitual offender.
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II. Standard of Review and Error Preservation.
Glenn first claims there was insufficient evidence to convict him on the
possession charges. “We review challenges to the sufficiency of [the] evidence
for correction of errors at law.” State v. Albright, 925 N.W.2d 144, 150 (Iowa 2019).
The State concedes Glenn preserved error on his sufficiency-of-the-evidence
claims by twice moving for a directed verdict, which was treated as a motion for
judgment of acquittal at trial. See State v. Adney, 639 N.W.2d 246, 249 (Iowa Ct.
App. 2001). Next, Glenn claims the district court erred in denying his motion for
new trial. “[W]e review the trial court’s ruling on a motion for new trial on the basis
of newly-discovered evidence for an abuse of discretion.” State v. Romeo, 542
N.W.2d 543, 551 (Iowa 1996). The States concedes he preserved error by timely
filing a motion requesting a new trial.
As to Glenn’s other appellate issue, we find he did not preserve error on his
newly crafted argument that possession of methamphetamine residue cannot
support a conviction under Iowa Code section 124.401(5). Glenn raises this
specific argument for the first time on appeal. “It is a fundamental doctrine of
appellate review that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.” Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002). Thus, we do not address that claim.
III. Analysis.
A. Sufficiency of the Evidence.
We first address Glenn’s sufficiency-of-the-evidence claim. “In reviewing
challenges to the sufficiency of evidence supporting a guilty verdict, courts
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consider all of the record evidence viewed in the light most favorable to the State,
including all reasonable inferences that may be fairly drawn from the evidence.”
State v. Reed, 875 N.W.2d 693, 704 (Iowa 2016) (citation omitted). “A jury verdict
finding of guilt will not be disturbed if there is substantial evidence to support the
finding.” State v. Robinson, 859 N.W.2d 464, 467 (Iowa 2015). Evidence is
substantial if it would “convince a rational trier of fact that the defendant is guilty
beyond a reasonable doubt.” Id. (citation omitted).
The State’s case was based on a theory of constructive possession
because the drugs and paraphernalia were not found on Glenn’s person.
“Constructive possession exists when the evidence shows the defendant has
knowledge of the presence of the controlled substance and has the authority or
right to maintain control of it.” Reed, 875 N.W.2d at 706 (quoting State v. Maxwell,
743 N.W.2d 185, 193 (Iowa 2008)). Elliott claimed and proved ownership of the
car to the officers at the stop. Still, Glenn had access to the vehicle as a
passenger. We do not recognize an inference creating a rebuttable presumption
of possession involving vehicles when it has been established that multiple
individuals had equal access to the vehicle. See State v. Kemp, 688 N.W.2d 785,
788 (Iowa 2004). “However, a determination of constructive possession still
requires we draw some inferences based on the facts of the case.” State v. Dewitt,
811 N.W.2d 460, 475 (Iowa 2012). We consider:
(1) incriminating statements made by the person; (2) incriminating
actions of the person upon the police’s discovery of a controlled
substance among or near the person’s personal belongings; (3) the
person’s fingerprints on the packages containing the controlled
substance; and (4) any other circumstances linking the person to the
controlled substance.
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Maxwell, 743 N.W.2d at 194.
Additionally, in a motor-vehicle case, a court may also consider these
factors: (1) was the contraband in plain view, (2) was it with the
defendant’s personal effects, (3) was it found on the same side of the
car seat or next to the defendant, (4) was the defendant the owner
of the vehicle, and (5) was there suspicious activity by the defendant.
Kemp, 688 N.W.2d at 789.
All of the factors listed serve as a guide in determining whether constructive
possession has been established. Id. “Even if some of these facts are present,
we are still required to determine whether all of the facts and circumstances . . .
allow a reasonable inference that the defendant knew of the drug’s presence and
had control and dominion over the contraband.” State v. Cashen, 666 N.W.2d 566,
571 (Iowa 2003). Lastly, a defendant’s mere proximity to contraband cannot
support a finding of constructive possession. Reed, 875 N.W.2d at 693.
Glenn claims the State presented insufficient evidence to prove he knew
the drugs and paraphernalia were in the backpack. We disagree. Glenn made
numerous incriminating statements regarding his possession of the backpack and
his knowledge of its contents. He told officers during the stop that his “personal
backpack” was in the car, containing “personal items.”6 Glenn specifically asked
that the officers not search the backpack, which suggested he had some control
over it. At the law enforcement center, a video camera recorded Glenn asking
Deputy Gries to retrieve his “other pair of glasses out of my bag.” He asked Deputy
Gries to mail a personal letter from the backpack for him. Glenn searched the
6These statements are contained in body camera footage from Deputy Gries that
was admitted at trial.
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backpack himself for the letter and his cellphone, indicating he knew what was in
the bag and where items were located. Glenn asked if his cousin could come get
the bag after the inventory process, again indicating the bag was his. Even more,
Glenn admitted, “I had residue in two glass dicks. I haven’t had my meds so I got
some pot to help ease my pain.” Deputy Gries found the drugs and paraphernalia
in the backpack with Glenn’s personal effects; namely a prescription bottle with
Glenn’s name and mail addressed to Glenn. All of the above supports the jury’s
finding that Glenn owned and had possession of the backpack and knew it
contained marijuana and paraphernalia with methamphetamine residue.
Glenn references omissions in Deputy Gries’s reports to attack the
credibility of the deputy’s trial testimony. Starting with the property inventory sheet
authored by Deputy Gries, Glenn argues it was missing a list of Glenn’s personal
effects. He postures, “With a wrong or incomplete inventory list, it is impossible to
know: if the deputy’s memory is incorrect about [my] property, if Elliott’s property
was in the bag, or exculpatory evidence was in the bag.” Additionally, Glenn
argues the inclusion of Elliott’s admission that she and Glenn possessed the drugs
and paraphernalia and the omission of Glenn’s incriminating statements in Deputy
Gries’s report and the criminal complaint weakens the conclusion Glenn knowingly
possessed the drugs.
Most of Glenn’s arguments about the inconsistencies in the evidence attack
the credibility of Deputy Gries. Despite any omissions or deficiencies in Deputy
Gries’s inventory list and report, the jury was able to evaluate his credibility based
on his trial testimony. See State v. Dudley, 856 N.W.2d 668, 676 (Iowa 2014)
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(“Our system of justice vests the jury with the function of evaluating a witness’s
credibility.”). Likewise, the jury heard Glenn’s incriminating statements during the
stop and the booking process, further bolstered by the presence of the drugs and
paraphernalia among his personal effects in the backpack. Viewing the evidence
in the light most favorable to the State, we conclude there was substantial evidence
that Glenn knowingly possessed marijuana and methamphetamine.
B. Motion for New Trial.
Elliott sent a handwritten and notarized letter to the county attorney dated
two weeks after the jury convicted Glenn. In the letter, Elliott took “full ownership”
of the marijuana, marijuana pipe, and two methamphetamine pipes found in
Glenn’s backpack. As the State noted, Elliott “conveniently had her charges
wrapped up the week before this letter came . . . when those charges were
wrapped up, they did not include possession of marijuana or possession of meth.”
In the hearing on the motion for new trial addressing the letter as newly discovered
evidence, the district court confirmed, “Well, this court on the record took a plea
and sentenced the author of the affidavit, Ms. Elliott, on December 2 [2019]. A
disposition order was not entered until December 4, which was the second day of
Mr. Glenn’s trial.” Pointing to the admissions, Glenn claims the district court erred
in denying his motion for a new trial. He argued in his motion, and now on appeal,
that newly discovered evidence warranted a new trial. The State resisted the
motion for new trial, but on appeal, it does not address this claim in its briefing.
Iowa Rule of Criminal Procedure 2.24(2)(b)(8) states a new trial may be
granted “[w]hen the defendant has discovered important and material evidence in
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the defendant’s favor since the verdict, which the defendant could not with
reasonable diligence have discovered and produced at the trial.” Specifically,
granting a motion for new trial based on newly discovered evidence is appropriate
only if the evidence “(1) was discovered after the verdict, (2) could not have been
discovered earlier in the exercise of due diligence, (3) is material to the issues in
the case and not merely cumulative, and (4) probably would have changed the
result of the trial.” State v. Smith, 573 N.W.2d 14, 21 (Iowa 1997) (quoting State
v. Jefferson, 545 N.W.2d 248, 249 (Iowa 1996)). District courts have “‘[u]nusually
broad discretion’ when ‘ruling on a motion for new trial on the basis of newly
discovered evidence.’” State v. Uranga, 950 N.W.2d 239, 243 (Iowa 2020)
(alteration in original) (quoting State v. Miles, 490 N.W.2d 798, 799 (Iowa 1992)).
“[W]e have made it clear that the court should closely scrutinize them and grant
them sparingly.” State v. Carter, 480 N.W.2d 850, 852 (Iowa 1992) (citation
omitted).
Glenn claims he was unaware of the letter, and so the evidence was not
available at trial. Yet, the letter offers little detail about what Glenn knew or did not
know about Elliott’s claim the drugs were hers. Glenn’s arguments to the jury
insinuated that Elliott was under the influence—not Glenn—and that the State was
wrongly fixated on Glenn, not Elliott. He pointed to Elliott as the owner of the car
and that the backpack was accessible to her as were the other personal items in
the vehicle. Thus, we find Glenn failed to carry his burden as to items (1), (2) and
(4). If Glenn realized Elliott was a potential suspect, as was suggested at trial, he
then had to show due diligence to investigate and produce such evidence. See
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State v. Compiano, 154 N.W.2d 845, 850-51 (Iowa 1967) (noting the applicant
must exhaust the probable sources of information, use that of which he knows,
and follow all clues that might be discovered or developed). Glenn had suspicion
of Elliott’s claimed possession yet failed to use due diligence to produce the theory
and evidence, or ask for a continuance to develop the theory. See id. at 850
(finding the exercise of due diligence may require requesting a continuance of the
trial).
Even so, on the fourth prong of the test, we cannot say this evidence
“probably would have changed the result of the trial.” Smith, 573 N.W.2d at 21. If
Elliott testified at Glenn’s trial that the drugs were hers, the State would have had
an opportunity to attack her potential motives and undermine her credibility with
the jury on cross-examination. Even more, the State presented strong evidence
that Glenn knowingly possessed the drugs based on his recorded incriminating
statements, behavior, and the presence of his personal effects in the backpack
where the drugs were found. Put another way, even if Elliott’s admissions were
available at trial, the jury still could find Glenn guilty based solely on the evidence
presented at trial. See Moon v. State, 911 N.W.2d 137, 151 (Iowa 2018). In the
denial of the motion for new trial, the district court summarized the reasoning:
I observed a fair and impartial trial. I cannot say that had Ms. Elliott
appeared and testified in this matter and then been subject to cross-
examination that the alleged new evidence would probably have led
to a different result upon retrial. And so the motion for a new trial is
denied.
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We agree. Trial courts are “generally in a better position than we to determine
whether evidence, newly discovered, would probably lead to a different verdict
upon retrial.” Compiano, 154 N.W.2d at 849
We find the district court did not abuse its discretion in denying Glenn’s
motion for new trial based on Elliott’s letter.
IV. Conclusion.
We affirm Glenn’s convictions for possession of marijuana and possession
of methamphetamine, as the verdicts were supported by substantial evidence. We
also find the newly presented evidence does not justify granting Glenn’s request
for a new trial.
AFFIRMED.